Milewska Legal

Commercial proxy – an attorney of an entrepreneur

26 May 2021

In the context of companies and partnerships, phrase “commercial proxy” is commonly present. You can expect that such a commercial proxy is a major figure from the sole fact that companies and partnerships disclose such commercial proxy in National Court Registry. So what exactly is a commercial proxy?

The nature of commercial proxy service

A commercial proxy (prokurent) is an attorney. However – power of attorney established for them is tailored for business purposes. Commercial proxy’s service consists on actions connected with running a business – despite the fact whether they are performed before a court or not – such as executing contracts.

Only a natural person (therefore not a company) who has full legal capacity (so of age and non-incapacitated) can become a commercial proxy. In the context of companies (limited liability company – spółka z ograniczoną odpowiedzialnością and joint-stock company – spółka akcyjna) – a shareholder of same company can become its commercial proxy. To be entitled to do so, such shareholder cannot hold any position in the management board nor in the supervisory body of the company.

However, despite the fact that the commercial proxy service is a form of power of attorney, it cannot be transferred to any other person. But in the same time – the commercial proxy can grant a power of attorney to perform certain action (but within a scope of their own competence) to another person.

Commercial proxy service can be established for more than one person in the same time. As we can differentiate these services, every type of commercial proxy service is connected with somewhat different competences.

Independent commercial proxy service (prokura samoistna) – commercial proxies act independently. Validity of performed legal actions is not dependant on presence of any other person.

Joint commercial proxy service (prokura łączna) – commercial proxies act jointly. Performance of legal actions depends on joint action of two or more commercial proxies.

Combined commercial proxy service (prokura mieszana) – commercial proxies act jointly with authorised body of the company. In such a case, validity of performed legal action is dependent on joint action of a member of the management board and a commercial proxy.

How to appoint a commercial proxy?

Commercial proxy can be appointed by an entrepreneur subject to entry in CEIDG (Central Registration and Information on Business) or Register of Entrepreneurs of National Court Registry.

The commercial proxy service has to be established in writing – otherwise it is not valid.

The commercial proxy has to be submitted with CEIDG or Register of Entrepreneurs of National Court Registry. When submitting, motion shall be inclusive of a written consent of person appointed as a commercial proxy and information of a type of commercial proxy service to be performed (whether it is independent, joint or combined). In the event that the combined commercial proxy service is established, the motion has to include information about the arrangement in which such service shall operate (as in – for example: commercial proxy acting with a member of the management board).

Termination of the commercial proxy service

Commercial proxy service can be revoked. Such revocation does not require any reasons and can be  made at any time. Revocation does not require any specific form – it can be made even orally if such spoken message is explicit enough.

Commercial proxy service is also terminated in the moment of removal of the entrepreneur form CEIDG or National Court Register, declaring bankruptcy or insolvency, opening of liquidation or transformation of an entrepreneur. Termination of the commercial proxy service is also a result of appointing of a supervisor of a legal person in the event of lack of body or partial composition of a body – so for example, when there is no management board in a limited liability company or when the articles of association require the management board to be multi-member and the operating management board consists on only one person. However, loss of legal capacity of an entrepreneur does not result in termination of the commercial proxy service.

Commercial proxy service is also terminated in the event of death of the commercial proxy. The commercial proxies themselves can renounce the commercial proxy service – unless the relationship between them and their principals indicates otherwise.

Liability of a commercial proxy

Article 116 of the General Tax Code stipulates liability of the members of the management board of a limited liability company in the event of tax arrears of the company, provided that they cannot be enforced from the assets of the company itself. In the absence of any legal basis, no such liability is incurred by the commercial proxy.

Commercial Companies Code (in article 299) describes liability of the members of the management board of a limited liability company for the company’s debts – provided that they cannot be enforced from the assets of the company itself. Article 2991 expanded such liability to company’s liquidators. In the absence of any explicit legal basis, no such liability is incurred by the proxy.

Aleksandra Kostrzewa
paralegal

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